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Net Neutrality

GoodBye Network Neutrality, Welcome Open Internet!

WASHINGTON, October 26, 2009 – Absent from the notice of proposed rulemaking released by the Federal Communications Commission Thursday is the charged term of “network neutrality” that has been discussed over the years. Instead, the paper is focused on the need to preserve an “open internet” through government intervention.

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WASHINGTON, October 26, 2009 – Absent from the notice of proposed rulemaking released by the Federal Communications Commission Thursday is the charged term of “network neutrality” that has been discussed over the years. Instead, the paper is focused on the need to preserve an “open internet” through government intervention.

The problem is that neither the principle of network neutrality – which deals with how broadband providers may charge differential rates for preferred business customers – or the need to preserve an “open internet” are precise words. Defining either for the purpose of government rules is not an easy task.

The focus on “open internet” versus “network neutrality” in the FCC’s proposed rules and the statement released by FCC Chairman Julius Genachowski makes sense given that it is easier to find supporters of the former than the latter. Still, President Obama used the term “network neutrality” during his campaign.

Regardless of the language used, the discussion of whether the government should become more involved to support network neutrality principles has gone on for years.

“Three years ago we were having a very different discussion; we didn’t have the kinds of applications on the Internet that we have today,” said Rob Atkinson, president of the Information Technology and Innovation Foundation. “Three years from now, we are going to have issues come up that we couldn’t predict today.”

Andy Schwartzman, president of the Media Access Project, said “I would say that the biggest change in the net neutrality debate has been the emergence of high speed wireless networks. This has made the issue more complex, and also more real, to people.”

A second factor is the effort of the large carriers to “make content providers subject to regulation,” he said. Schwartzman noted that the role of edge players such as Google, Skype and Amazon has become more and more important.

“Network neutrality – the concept that the Internet should remain free and open to all comers – has been a major public policy priority for Google over the last two years. But anyone who has followed the debate closely knows that one of the challenges raised by our opponents has been defining what exactly the term means. The fact is, net neutrality can mean different things to different people,” wrote Google’s Washington Telecom and Media Counsel Richard Whitt in a 2007 blog post.

At the time, Whitt clarified what Google meant by the term. He was also reacting to some statements by top Google executives suggesting a softening of the company’s hard-line views on the subject. Whitt noted “that lack of broadband competition gives providers the market incentive and ability to discriminate against Web-based applications and content providers.”

If the definition of either network neutrality or what it means to ensure an open internet were clear and confined, the FCC would not need 107 pages to address the issues at hand and to explain why establishing rules governing internet access makes sense even as technology continues to evolve.

Atkinson defined the issues at the heart of the debate as being “first whether ISPs have blocked or degraded Web sites and under what circumstances, if any should this be allowed.”

The problem of blocking legitimate web sites or applications has never been realized, Atkinson said, with the exception of the case of Madison River, a small internet service provider blocking Vonage’s voice-over-internet-protocol applications. “The second issue is whether commercial arrangements should be allowed that would enable content and application providers who paid higher premiums to get better delivery of their Web products,” he said. “The third issue is how ISP networks should be managed to enhance performance.”

Atkinson urged the FCC to establish a generalized principle for a fair and open internet and enforce that principle on a case-by-case basis.

Genachowski summed up the challenge last Thursday, when he said, “[D]o any of us think that the draft rules proposed today perfect? Are they set in stone? No—we are at the beginning of a rulemaking process, with draft rules offered in the context of a Notice that seeks to spot the issues, ask the hard questions, and seek broad public input.”

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Net Neutrality

FCC’s Simington Welcomes Congressional Action on Net Neutrality

The commissioner prefers going the route of legislation over Democratic FCC commissioners leading the charge for neutrality protections.

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Photo of Federal Communications Commissioner Nathan Simington, left

WASHINGTON, June 1, 2022 – Federal Communications Commissioner Nathan Simington said last week he would welcome congressional legislation to address debates over policy on net neutrality that continue to rage as the commission considers provisions that would protect the principle.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

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Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

  • The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

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Net Neutrality

Federal Appeals Court Upholds California’s Net Neutrality Rules

The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.

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Photo of Mary Schroeder, Chief Judge of the Ninth Circuit Court, from the May 2006 Swarthmore commencement address

January 28, 2022 – The Ninth Circuit Court of Appeals on Friday ruled against broadband companies seeking to block a state net neutrality law, and internet policy advocates are calling it a win for consumers in California.

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

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